GIFTS TO CLASS-VESTING. legacies to the trustees "upon the trusts, &c., hereinafter declared, &c.," and to state the trusts after the provisions as to the residue. class 455 vesting (c). A group of persons denoted by a common descrip- Gifts to tion, as filling a common character or holding the same position, constitute a class (d). For example, "barristers," "soldiers," "A.'s children," "such of A.'s children as attain twenty-one," are classes. The rules as to the vesting of testamentary gifts to a class are the following: (i.) A devise or bequest to a class vests prima facie in Immediate the members of the class in existence at the death of gift. the testator, if there are any then in existence (e). For example, if A. makes a gift by will to "the children of" B., and any children of B. are living at A.'s death, they take the whole. If no child of B. is living at A.'s death, all the subsequently born children of B. take personalty (ƒ), and probably realty (g) given to "the children of" B. class in remainder. (ii.) Where a devise or bequest is made in remainder to Gift to a class, e.g., to A. for life, remainder to the children of A. (or to the children of B.), it vests in the members of the class living at the death of the testator, subject to letting in other members of the class who come into existence after the death of the testator and before the time of distribution (h), i.e., the death of the tenant for life (assuming that he survives the testator), the principle being to ascertain the class at the period of distribution. It will be observed that in this case the members of the class living at the testator's death take vested interests, and that each member coming into existence subsequently before the period of distribution takes a vested interest, subject in both cases to be divested as to part by other members of the class coming into existence and taking shares, and thus pro tanto diminishing the amount of shares previously vested. The shares being vested, if a member of the class dies before the period of distribution, his share passes to his heir, devisee, or personal representative, as the case may be. For example: Let the gift be of personalty in trust "for A. for life, and after his death for the children of B." In this case the children of B. living at the death of the testator take vested interests, and B.'s children subsequently born during A.'s life take vested interests at birth; and the fund ultimately becomes. divisible among such of the children living at the death of the testator or born afterwards as survive A., and the personal representatives of such of them as die before A. (i). (iii.) Where the vesting or payment is to take place when a specified event happens, no members of the class born after the event can take (j). Thus, if the gift is an immediate gift to such of the children of A. as attain twenty-one, the event is the attainment of twenty-one by the eldest child; and if any child of A. has attained twentyone before the testator's death, only such children of A. as are living at the testator's death and have then attained or subsequently attain twenty-one can take (Hagger v. Payne, 23 Beav. 474); but if no child of A. has at the testator's death attained twenty-one, then all children of A. take who are in existence when the eldest child attains twenty-one, and who attain twenty-one. That is to say, the time of distribution and of fixing the class is the time when the first child becomes entitled to receive his share. This is (i) This rule applies to the gift of an aggregate sum to a class; but where there are separate legacies (e.g., £100 to each of the children), only children living at the testator's death are entitled ; a rule which rests on the ground of the inconvenience of postponing distribution of the estate; Mann v. Thompson, Kay 638. (j) This rule is applicable to a voluntary settlement, and probably to a settlement for value; Re Knapp (1895), 1 Ch. 91. DEVISES LAND TRANSFER ACT. a rule adopted to avoid the inconvenience which would result if no share could be ascertained until it became certain that no more persons could possibly become members of the class, and so diminish the minimum share of each person already entitled. It is a "rule of convenience, not founded on any view of the testator's intention, that since, when a child wants its share, it is convenient that the payment of the share should not be deferred, it shall be made payable by preventing any child born after that time from participating in the fund. The rule is that, so soon as any child would, if the class were not susceptible of increase, be entitled to call for payment, the class shall become incapable of being increased. That rule of convenience, being opposed to the intention, is not to be applied when it is not necessary, it being also a rule that you let in all who are born up to the time when a share becomes payable (Berkeley v. Swinburne, 16 Sim. 275)"; per Jessel, M.R., Re Emmet, 13 Ch. D. 484, 490. See Gillman v. Daunt, 3 K. & J. 48; Re Mervin (1891), 3 Ch. 197 (k). If the gift is in remainder, e.g., to A. for life, and then to such children of B. as attain twenty-one (or to the children of B. payable at twenty-one), the period of distribution will be the death of A. if any child has then attained twenty-one, otherwise it will be when the first child attains twenty-one; and all children born before such period will take interests, vested or contingent (Re Emmet, 13 Ch. D. 484). Land 457 A devise contained in the will of a testator dying before Devises1898 takes effect immediately on his death; but, under the Transfer Land Transfer Act, 1897 (1), where a man dies (testate or Act, 1897. intestate) after 1897, all the real estate vested in him without a right in any other person to take by survivorship (excepting copyholds or certain customary freeholds, but including property over which he has exercised a general testamentary power), vests on his death, notwithstanding (k) The rule does not apply to trust for conversion; Blackman v. gifts of income; Re Wenmoth, Fysh (1892), 3 Ch. 209. 37 Ch. D. 266. Nor to real estate given specifically and without a (1) L. T. A. 1897 (60 & 61 Vict. c. 65), s. 1. any testamentary disposition, in his personal representatives or representative as if it were a chattel real. The personal representatives have (m) to administer the real estate as if it were personalty, and they can therefore sell or mortgage it; but some or one of several personal representatives cannot convey or transfer land without the authority of the Court. (Re Pawley and London and Provincial Bank, Ltd., (1899) W. N. 214.) 66 It need hardly be said that an estate for the life of the testator, or land of which he dies seised for an estate tail, does not pass under sect. 1. The word "vested," in sect. 1 of the L. T. A. 1897, is used in its original meaning of "being the property of" (n), and not in contradistinction to contingent." It follows that the estate of the deceased in realty (excepting as above mentioned), whether in possession, remainder, or reversion, and whether legal or equitable, vested or contingent, vests on his death in his personal representative. The provisions above referred to of the L. T. A., 1897, are not applicable to trust or mortgage estates, which devolve under the C. A. 1881, s. 30. The personal representatives may assent to a devise or convey the real estate to any person entitled to it (o), and either subject to a charge for any money which they are liable to pay, or without such charge; and on such assent or conveyance, subject to a charge for all moneys which they are liable to pay, all their liabilities in respect of the real estate will cease, except as to acts done or contracts entered into by them before the assent or conveyance. After the expiration of one year from the death of a land owner the person entitled to the land can obtain an order of the Court requiring the personal representative to convey it to him. The provisions above cited of the Land Transfer Act, 1897, do not affect the beneficial interests in land, whether devolving under a will or an intestacy, except that they (m) L. T. A. 1897, s. 2. For form of assent, see form 46 in Schedule to L. T. R., and for form of conveyance, 1 K. & E. 909. DEVISES-LEGAL ESTATE. enable the personal representative, without any order of the Court, to sell or mortgage the land for the purposes of administering the estate of the testator; and they do not appear to necessitate any change in the forms used for beneficial gifts. estate. The owner of land may adopt either of three different Real schemes of disposition. He may give it absolutely to the devisee; he may put it into strict settlement; or he may settle it on trusts resembling those of a settlement of personalty. fee. 459 In the first case, there are various plans for vesting the Devise in legal estate in fee simple in the devisee. The testator may make (a) a devise "to A. B. and his heirs"; (ß), a devise "to C. B. and his heirs to the use of (or in trust for) A. B. and his heirs"; (y), a devise "to the use of A. B. and his heirs"; and in either case the words of limitation may, since the Wills Act, 1837 (7 Will. 4 & 1 Vict. c. 26, s. 28), though they should not, be omitted, or the words "in fee simple" may be substituted. If it is really intended that A. B. should take an equitable estate only, the devise may be "unto and to the use of C. B. and his heirs, in trust for A. B. and his heirs," or, 66 Ito the use of C. B. and his heirs in trust for A. B. and his heirs." The best plan in either case is to devise directly "to the use of" the person intended to take the legal estate. estate. The rule that a devise "to C. B. and his heirs to the Legal use of (or in trust for) A. B. and his heirs," vests the legal estate in A. B., is subject to the exception that the legal estate is vested in C. B. if any trust or duty is imposed on him the performance of which requires that the legal estate should be vested in him (p). A devise in strict settlement (p) See this explained, M. L. R. P. 412, where it is pointed out that though the Statute of Uses does not apply to wills, yet it is sometimes used as a mode of construing wills where the form of follows very closely the form Devise in the gift appears to have been strict set tlement. |